MUHAMMAD JAMSHIED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 112/2024, [2025] HKCA 287

On appeal from [2022] HKCFI 2134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 112 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1452 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 26 July 2022, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 9 August 2023, the applicant filed a summons at the Court of First Instance to seek extension of time to appeal against that decision. The summons was dismissed by the judge on 12 September 2023[2].

3.  On 26 June 2024, the applicant filed the present summons with the Court of Appeal to seek leave to appeal out of time against the order dated 12 September 2023. This summons should be treated as a renewed application for extension of time to appeal against the judge’s decision of 26 July 2022 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 22 September 2006 and raised his torture claim on 20 October 2006, which was dismissed on 21 March 2013. He lodged his non-refoulement claim on 11 November 2013 on the basis that, if refouled, he would be harmed or killed by his enemy, Imamia Student Organization.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 24 January 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds other than torture risk[3] (because his torture claim had already been rejected), including BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 3 December 2018. The Board did not accept the applicant’s claim as he failed to produce any documentary evidence which he said is at his family home in Pakistan, and failed to offer any explanation for his failure to produce the same. The Board also found the fact that the applicant was able to leave Pakistan at the airport on his own passport without any difficulty despite being a wanted person by the court and the police raises further doubt as to the existence of the alleged two false charges against him. The Board held it would be reasonable for the applicant to relocate to another city in Pakistan to avoid the perceived risk. The Board therefore concluded that the applicant failed to establish his claim and rejected his appeal on 20 December 2018.

The intended judicial review

7.  On 28 May 2019, the applicant filed a Form 86 and an affirmation in HCAL 1452/2019 to seek leave to bring judicial review against the Board’s decision. His application was made out of time. He only stated in his supporting affirmation that he does not agree with the decision of the Board and he cannot go back to his country because his life is in danger, without putting forward any specific grounds for his intended challenge against the Board.

The judge’s decision

8.  DHCJ K W Lung dealt with the leave application on paper as the applicant did not request an oral hearing. The judge held that the applicant did not raise any valid ground to challenge the Board’s decision. He also found no error of law, procedural unfairness or irrationality in the Board’s decision. In addition, the judge found no evidence to show there is a realistic prospect of success in the intended judicial review. Therefore, he refused to grant extension of time and dismissed the leave application on 26 July 2022.

Grounds of appeal

9.  The grounds of the intended appeal may be summarised as follows:

(1)  The Director and the Board determined the applicant’s case unfairly.

(2)  He was deprived of his basic right. There has been no legal or language assistance.

(3)  He was not allowed to attend an oral hearing in the court and his case was determined on paper.

(4)  The Board failed to conduct specific assessment of the risk of the applicant, to analyse the substance of his claim, to consider the country of origin information on the issues presented and to properly assess his credibility.

(5)  The judge failed to follow the law and did not give him the chance to explain.

Analysis

10.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 26 July 2022 and the applicant was late by about a year when he took out the summons at the court below on 9 August 2023. The delay is very substantial. Worse still, the applicant delayed further for more than 9 months in taking out the present application. He did not provide any explanation for the delay. Under these circumstances, the applicant’s delay is inexcusable. Therefore, he must show a real prospect of success on the merits to obtain an extension of time to appeal[7].

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.  The applicant’s grounds concerning the Board were not raised in his previous application in the court below. An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[8]. In any event, he failed to provide sufficient particulars or evidence in support to show there are errors of law or procedural unfairness or irrationality in the decision of the Board for the court to intervene by way of judicial review.

14.  As for the ground relating to the lack of legal representation, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[9]. The applicant already had the benefit of legal representation in presenting his case to the Director.

15.  In respect of language assistance, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by duty lawyer. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire[10].

16.  As for the grounds against the judge’s decision, the judge may determine the application for leave without a hearing pursuant to Order 53 rule 3(3) of the Rules of the High Court, unless a hearing is requested in the notice of application. As the applicant did not request for an oral hearing in his notice of application, the judge was entitled to deal with the application on paper. The applicant’s complaint that the judge did not follow the law is a bare assertion without basis.

17.  For the above reasons, there is no prospect of success in the intended appeal. Therefore, we refuse to grant extension of time to appeal against the judge’s decision of 26 July 2022 and dismiss the summons filed on 26 June 2024.

18.  On 11 November 2024, the court was notified by the Director that the applicant has been removed from Hong Kong. We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.